R v Davidson [1997] QCA 279

Court of Appeal (Qld)|1997-08-07|Before: Davies J, Pherson JA, White J

DAVIES JA: The applicant was sentenced on his own plea of guilty in the District Court on 1 May last to an effective term of four and a half years imprisonment for five offences of housebreaking, six of burglary and eleven associated counts of stealing. The learned sentencing Judge also made an order for forfeiture of a Triton utility under the Crimes Confiscation Act 1989.

The applicant seeks to appeal against that sentence. He was 30 years of age at the time of sentence with only a minor criminal history, effectively two stealing offences in 1984. He had not previously been sent to gaol.

The offences which were random and largely purposeless, in that much of the stolen property the applicant did not keep, extended over a period of about three months and involved a total value of over $30,000. Four of them were committed with a co-offender, a much younger man with no criminal history, who was also dealt with and it appears there may have been at least one other co-offender.

The applicant pleaded guilty at an early stage. He also assisted Police in locating stolen property. He made some admissions and he disclosed his co-offender or co-offenders. He also conceded that his car was involved in the commission of some of the offences. He was in a stable relationship with a woman at the time and was also curiously in employment as a boilermaker. He was effectively a first offender in the sense that his previous offences were minor and a long while ago and consequently, in my view, the sentence of four and a half years imprisonment was a high one, particularly in the absence of a recommendation for eligibility for parole.

A number of comparable cases were cited to us by both sides, the most comparable being Negus CA No 57 of 1997, Shearer

CA No 130 of 1996 and Smerdon CA No 258 of 1996. In the last of those cases a number of other comparable cases are referred to.

Negus was about 30 years of age, but he had an extensive criminal record which included previous offences of burglary. He was also convicted after a trial which was for four counts of burglary. His sentence of 4 years, therefore, appears to be lenient compared to this case, although the extent of his criminality in respect of those offences of which he was convicted is a little difficult to compare with Davidson's.

Shearer was also a man of about 30 years of age. He pleaded guilty to 52 counts and he received a sentence of 4 years with a recommendation after 18 months which was not disturbed on his application for leave to appeal against sentence. The amount involved in his case was between $30,000 and $50,000, and he had a minor criminal history as this man did.

Smerdon was convicted after a trial of 24 counts involving over $60,000. He was also nearly 30 years of age, again with only a minor criminal history, and he was sentenced to four and a half years imprisonment without any recommendation.

These cases show, in my view, that in the absence of a recommendation for early parole the sentence imposed in this case was too high, but with an appropriate recommendation would have been within, though still at the high end of the appropriate range.

I would therefore grant the application and allow the appeal only to the extent of adding a recommendation that the applicant be eligible for parole after serving 18 months of the total sentence which was imposed on him.

McPHERSON JA: The order will be as Mr Justice Davies foreshadowed.

Crimes Confiscation Act 1989

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